Wingard: The Veterans Court's Inability to Review the Rating Schedule

Wingard v. McDonald, Opinion Number 11-1214, was decided May 8, 2015 and concerns non-service connected burial benefits under 38 USC Section 2302, but is really instructive as to the Veterans Court’s jurisdiction to review the rating schedule.

The veteran had a hernia that was service connected but given a noncompensable rating.  The veteran’s daughter argued the noncompensable rating was at odds with the actual statute.  She then argued from this position that the requirement for a burial benefit was met because the phrase “in receipt of compensation” should be interpreted to include veterans who are entitled to receive compensation at death. 

In a prior decision, the Veterans Court held the statutory prohibition on judicial review of the content of the rating schedule did not preclude the Court from addressing the argument that the regulations are contrary to the plain and unambiguous language of 38 USC Sections 1110 and 1155.  But, then found the Secretary’s interpretation of the statute was reasonable.  On appeal the Federal Circuit found that 38 USC 7252(b) which discusses the Veteran Court’s jurisdiction prohibited the court from determining whether the rating schedule, by including a 0% disability, violates the statutory constraints.

On remand, the Veterans Court made its displeasure known at the Federal Circuit’s decision.  The Court admits Congress did not want piecemeal challenges to the rating schedule but states  the veteran argued that 38 USC Section 1155 specifically lays out 10 grades of disability beginning at 10% and does not authorize a 0% rating.  “The appellant does not seek to alter the substance of the Secretary’s regulations relating to a particular disability or second guess the Secretary’s absolute discretion to determine what warrants one of the 10 disability ratings authorized by section 1155.  Indeed, what if the Secretary were to adopt a schedule authorize a 15% or 17% disability rating, clearly contrary to the plain language of section 1155?  How could such a blatant violation of the clear wording of the statute be beyond our jurisdiction?”  Id. at *5.  “Thus, respectfully, we see the appellant’s issue not as a substantive challenge to the schedule as conflicting with the statute, but as a charge that the Secretary’s adopted schedule has exceeded the contours of the its enabling statute.”  Id. at *6.  However, the Veterans Court recognized it was bound by the Federal Circuit’s determination that it could not review the issue.

This is an interesting decision in that it both illustrates the fact the Court's cannot meddle with the rating schedule while also explaining clearly why some limited Court involvement is desirable.

Decision by J. Schoelen, joined by CJ Kasold and J. Pietsch.

Da Nang Harbor and bluewater veterans

Gray v. McDonald, Opinion Number 13-3339, was decided April 23, 2015 and concerns the Bluewater designation and whether a veteran who served in the Navy aboard a ship that anchored in Da Nang Harbor is entitled to an Agent Orange Presumption.

The veteran served in the Navy and his ship anchored in Da Nang Harbor.  He was seeking service connection for several ailments that are presumptively linked to Agent Orange.  The veteran argued he should be afforded those presumptions based on his location in Da Nang Harbor.  He argued the VA’s interpretation of Da Nang Harbor as an offshore rather than inland waterway was arbitrary and capricious and the Court held the veteran’s interpretation was inconsistent with the purpose of the regulation and does not reflect the Agency’s fair and considered judgment.

The VA requires actual presence on the landmass or inland waters of Vietnam for a presumption of exposure to Agent Orange.  The issue was whether being anchored in Da Nang Harbor constituted service in inland waters. 

The Court recognized the blue versus brown water distinction created in Hass v. Peake and that an agency’s interpretation of its own regulations is given substantial deference.  The Secretary argued labeling Da Nang Harbor bluewater is a reasonable interpretation of its statute and sought to rely on the adjudication manual, a training letter, and a service bulletin as support.  The Court recognized these documents labeled Da Nang Harbor bluewater, but noted they did not explain the likelihood of herbicide exposure based on spraying but seemed to rely on the fact the harbor is easy to sail into.  The Court stated “Absent a connection to the probability of exposure based on spraying, the Court finds the rationale supporting VA’s designation of Da Nang Harbor is inconsistent with the regulation’s purpose of compensation based on the probability of exposure.”  Id. at *13.  Instead the Court found the documents the VA relied upon are devoid of any indication of a fact-based assessment of the probability of exposure to aerial spraying in Da Nang Harbor and determined the VA’s definition of an inland waterway did not reflect the agency’s fair and considered judgment. 

The Court ultimately did not grant service connection but remanded with the instruction the VA had to reevaluate its definition of inland waterways—specifically Da Nang Harbor—and exercise its fair and considered judgment to define them in a manner consistent with the regulation’s emphasis on the probability of exposure.

This is an important case that potentially impacts many Navy veterans who anchored in an inland waterway and were exposed to aerial spraying, but have been denied presumptive Agent Orange exposure because the VA has uniformly labeled these waterways as offshore rather than inland.  It is still unclear how the VA will handle the remand and if they will try to limit its reach, but it bears close watching and could result in compensation for many Navy veterans.

Decision by J. Schoelen and joined by J. Hagel and J. Davis.